​Mr. Winiarsky has the following statement, in quotation marks, on his law firm’s website:

​

“Successfully representing my client’s interests depends, [why is there a comma here?] not only on staying up to date with legal decisions, but with industry trends in my practice areas. Having this knowledge means that I can anticipate my client’s needs and litigate aggressively on their [“their,” even though he is referring to only one client? This is a common mistake, but one might have thought that a high-end lawyer like Mr. Winiarsky would know better; in any case, doesn’t he represent multiple clients?] behalf [what about advising your clients so that they could avoid litigation in the first place?] Understanding their world allows me to be successful on their behalf [this last sentence is redundant].”

​

I would re-write the above as follows:

​

“Successfully representing my clients’ interests depends not only on staying up to date with legal decisions, but with industry trends in my practice areas. Having this knowledge enables me to anticipate my clients’ needs, advise them so that they are able to avoid litigation where desirable and possible, and litigate aggressively on their behalf when litigation is either desirable or unavoidable.”

​

Mr. Winiarsky also has the following statement, without quotation marks, on his law firm’s website:

​

Nativ is a Partner at Kucker Marino Winiarsky & Bittens, LLP [why is “partner” capitalized?]. He is a senior attorney whose legal practice is concentrated on the practice areas of complex State Supreme Court and commercial landlord-tenant litigation. He has litigated countless trials, jury and non-jury, before various forums throughout the state. Nativ has been in [“at” sounds better than “in”] the forefront of groundbreaking law that has greatly assisted landlords throughout the city, has argued motions[,] and has participated in multiple and various appeals in [“at” sounds much better than “in”] both the state and federal level[s]. Furthermore, he has written various articles in numerous legal journals and is a regular contributor to the New York Law Journal. With an established reputation [among whom?] as an extremely competent [“extremely”? sounds arrogant, not to mention unlikely and reflective of an inferiority complex] and aggressive litigator, Nativ has quickly risen to prominence in the high-stakes litigation arena [if he is a “senior attorney,” then “has quickly risen” should be replaced by “quickly rose,” unless he is saying that his rise to greatness is a recent development].

​

​​

The Appellate Division was not impressed with Mr. Winiarsky’s  ethics (that is, his lack thereof).

​

104 A.D.3d 1

IN RE: Nativ WINIARSKY, an attorney and counselor-at-law: Departmental Disciplinary Committee

for the First Judicial Department, Petitioner, Nativ Winiarsky, Respondent.

​

December 27, 2012

PETER TOM, Justice Presiding, ANGELA M. MAZZARELLI, DAVID B. SAXE, JAMES M. CATTERSON, LELAND G. DeGRASSE, Justices.

 

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York, (Naomi F. Golstein, of counsel), for petitioner. Richard M. Maltz, for respondent.

*2 Respondent Nativ Winiarsky was admitted to the practice of law in the State of New York by the Second Judicial Department on May 8, 1996. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Judicial Department.

​

The Departmental Disciplinary Committee now seeks an order, pursuant to 22 NYCRR 605.15(e), disaffirming the Hearing Panel’s findings insofar as it recommended dismissing certain charges, but confirming its sanction recommendation of a public censure. By cross motion, respondent seeks an order confirming the Hearing Panel’s report in its entirety, denying the Committee’s motion to the extent it seeks to disaffirm the Panel’s dismissal of certain charges but granting the motion to the extent that it seeks censure.

​

This disciplinary proceeding arises out of respondent’s actions in two unrelated Housing Court proceedings. In the first proceeding respondent represented the landlord. The issue in the proceeding was whether the roommate of the deceased tenant of record (the “roommate”), who claimed to have been the tenant’s domestic partner, was entitled to claim succession *3 rights. Respondent sought and received leave of court, as required by CPLR 408, to depose the roommate. During the deposition, the roommate identified the tenant’s adult son and daughter as witnesses who could corroborate his claim of domestic partnership with the late tenant of record. Hence, again pursuant to CPLR 408, respondent moved for leave to serve subpoenas duces tecum and testificandum upon the deceased tenant’s children. Respondent served the motion on the roommate’s counsel and on the tenant of record’s children, with proposed subpoenas (leaving the dates of deposition and signature lines blank) attached as exhibits.

​

Prior to the motion return date, the wife of the deceased tenant’s son called respondent inquiring as to whether her husband could appear for questioning voluntarily in order to obviate the need for a future court appearance. Respondent replied that if the son appeared voluntarily, there would be no need to proceed with his motion. The wife agreed that her husband would appear voluntarily at respondent’s office. When respondent contacted the daughter, she too agreed to appear voluntarily so as to avoid a future, obligatory appearance.

​

A few days later, the tenant of record’s son appeared at respondent’s office at which time he was placed under oath, advised of the penalty of perjury, and gave testimony which was transcribed by a stenographer. Respondent also requested that the son make any necessary corrections to his testimony on a separate errata sheet, sign the transcript, and return it to him. Respondent did not provide opposing counsel, or the court, with prior or subsequent notice that he would be questioning the son under oath.

​

Three days after he questioned the son, respondent emailed opposing counsel and, without providing a specific reason, requested an adjournment of his CPLR 408 motion for leave to depose the children, which was returnable three days later. Counsel consented to an adjournment of approximately six weeks. Four days after that consent was received, the deceased tenant’s daughter appeared at respondent’s office and was also placed under oath and gave testimony which was transcribed by a stenographer. Respondent also requested that she correct any errors on a separate errata sheet and return the signed transcript to him.

​

Less than two weeks later, respondent informed opposing counsel that he was withdrawing his motion for leave to take discovery; however, he did not provide his adversary or the court *4 with a specific reason as to why he was doing so. The roommate’s counsel eventually learned that the tenant of record’s children had been questioned by respondent under oath, and moved for, inter alia, an order dismissing the proceeding with prejudice, sanctioning respondent, and disqualifying his firm from continuing to represent the landlord in the proceeding. Housing Court Judge Joseph Capella granted the cross motion to the extent of suppressing the testimony of the children, awarding the roommate reasonable attorneys’ fees for the cross motion, and disqualifying respondent’s firm from representing the landlord.

​

Respondent testified before the Referee that he did not intend to violate CPLR 408, and that he viewed his questioning of the two witnesses as having been no different than securing a voluntary affidavit or sworn statement outside the judicial process. He further testified that when he took the testimony at issue, he did not feel it was necessary that he inform the court or opposing counsel of his course of action, despite the pending motion for leave. However, upon reflection, he testified, he came to realize that opposing counsel would have been under the reasonable, albeit not necessarily correct, impression, that when the motion was made he would refrain from questioning the witnesses until the court had ruled.

​

The second litigation proceeding out of which the subject charges arise was a Housing Court proceeding that had been assigned to a court attorney to act as a special referee for resolution of discovery matters. While the proceeding was pending, the court attorney received an ex parte email from respondent which read, in pertinent part:

​

“[o]ur firm is currently seeking to hire a mid level associate with about 4–6 years of experience in litigation. Would you know of anyone, whether it is an individual working in Supreme Court or in Housing Court, who may be interested? [ · ] Of course, if you may have any interest, I would be keenly interested in discussing such a position with you as I have greatly admired both your grasp of the law and the manner in which you have handled the issues presented to you.”

​

The court attorney testified before the Referee in this matter that, upon receipt of the ex parte email, he discussed the matter with the chief court attorney and the presiding judge; and it was decided that respondent’s email should be forwarded to the *5 other counsels of record with an admonition that all parties were to receive copies of any correspondence with the court. While none of the other attorneys sought the court attorney’s recusal, he later recused himself when it became evident that he would be a witness in this proceeding. The court attorney testified before the Referee that, while he considered respondent’s email a “lapse in judgment” and “inappropriate”, he did not feel that respondent had a “nefarious” purpose in sending it.

​

Respondent, who acknowledged that the email reflected an “absence of thought,” testified before the Referee that he did not intend to influence any decision the court attorney might make in connection with the litigation. Respondent explained that during the period at issue, his firm, which had previously and recently hired former court attorneys, was looking to fill an associate position. As to his raising a potential job opportunity with the court attorney, respondent explained:

​

“I asked [the court attorney] whether he knew of anyone, another court attorney who may be interested, and as an aside in the end, I didn’t want him to be slighted, I asked also if he would have an interest. And my intent in originally doing that is—· My intent in doing that was so as not to slight him to think that I didn’t believe him to be someone of worth or someone that we should be considering.”

​

The Departmental Disciplinary Committee served respondent with a notice and statement of seven charges, six of which related to his taking the depositions of non-party witnesses in a special proceeding without leave of court, and one related to his ex parte communication of a job opportunity to the court attorney who was acting as a special referee in the special proceeding in which respondent represented a party. Respondent admitted most of the facts alleged but denied all of the charges. Respondent also asserted five affirmative defenses, most notably, that since his “investigative interviews” of the non-party witnesses were not depositions within the definition of CPLR 3102, they did not require leave of court and he was not obligated to comply with CPLR 408. The Committee ultimately withdrew two of the charges relating to the discovery taken without leave.

​

The Referee sustained all of the remaining charges. As to the disclosure charges, the Referee explained that respondent was an experienced and competent attorney who knew he had to file *6 a discovery motion in the summary proceeding and to obtain leave of the court before he could depose witnesses. The Referee rejected respondent’s efforts to distinguish between depositions and examinations under oath, finding that his securing of leave to depose the roommate evinced that he knew a court order was required to question any other witnesses. The Referee also pointed out that respondent’s firm had been admonished for similar behavior in two unrelated prior proceedings, a history of which respondent was aware. The Referee found that respondent’s behavior was an attempt to circumvent the CPLR and thus prejudicial to the administration of justice, a violation of DR 1–102(A)(4) and (5). The Referee further found that respondent’s delaying tactics in requesting an adjournment of the motion for leave, his subsequent withdrawal of his discovery motion and his failure to deal in a transparent and honest way with opposing counsel and the court also constituted conduct involving dishonesty, fraud, deceit and misrepresentation, constituting a violation of DR 1–102(A)(4).

​

As to the email to the court attorney, the Referee found not credible respondent’s defense of lack of thought and lack of recognition of the impropriety of his conduct which, while a serious lapse of judgment not likely to be repeated, constituted a violation of DR 1–102(A)(7). After a sanction hearing and respondent’s concession that public censure was the appropriate recommendation for sanction, the Referee recommended that respondent be publicly censured.

​

The Hearing Panel affirmed the Referee’s liability finding as to the charge involving the e mail to the court attorney, and agreed with the Referee’s recommendation of a public censure based on that charge. However, the Panel did not sustain the remaining charges. It found there to be a distinction between a “formal deposition” contemplated by CPLR 408 and 3102 and the “sworn testimony” taken by respondent from the tenant of record’s children, which it found to be akin to affidavits, affirmations and declarations, none of which is a statutory disclosure device. The Panel further found that respondent’s decision to proceed after having filed a motion for leave to conduct discovery was a mere change in strategy which was entirely appropriate.

​

The Committee moves to disaffirm the Hearing Panel’s findings insofar as it recommended dismissing the charges relating to the questioning of the two witnesses, but confirming its sanction *7 recommendation of a public censure. Respondent seeks an order confirming the Hearing Panel’s report in its entirety, denying the Committee’s motion to the extent it seeks to disaffirm the Panel’s dismissal of certain charges but granting the motion to the extent that it seeks censure.

​

We grant the Committee’s motion in its entirety and grant the cross motion only to the extent it seeks confirmation of the Panel’s sanction recommendation. The Hearing Panel’s reasoning is flawed and essentially places form over substance in concluding that respondent did not take the depositions of the deceased tenant’s children in violation of CPLR 408. As noted by the Referee, the circumstance under which the lay witnesses gave their sworn testimony had all the indicia of a deposition, to wit: they were placed under oath and advised of the penalty of perjury; their testimony was transcribed by a stenographer; and they were instructed as to the proper execution and return of an errata sheet and the transcript. The only appreciable difference in the manner in which the questioning was conducted was that only in the roommate’s deposition were the “usual stipulations” entered into. However, that is only because in that scenario there was actually someone to stipulate with; i.e., counsel for the roommate. Respondent’s contention that there was a marked difference in that the children, as opposed to the roommate, were free to leave at any time, ignores the fact that respondent never advised them of that prior to, or during, their testimony. As unrepresented lay people, it is doubtful that they were aware that they were not compelled to answer all of the questions. Moreover, the fact that the motion served on the witnesses contained proposed, albeit unexecuted, subpoenas, further suggests that they were likely unaware that they were free to terminate the questioning session at any time. In any event, in our view, the Hearing Panel should have deferred to the Housing Court on the matter of whether CPLR 408 required respondent to secure leave of court before eliciting the testimony at issue. Respondent’s claim that he acted under a good faith belief that he was engaging in informal investigation outside of CPLR 408 is belied, in part, by his own firm’s history of obtaining ex parte discovery, of which he was admittedly aware.

​

Contrary to the Panel’s conclusion that respondent’s conduct with respect to the depositions was not punishable by the Disciplinary Committee, we have in the past found that discovery abuses like those which occurred here can indeed constitute ethical transgressions warranting professional discipline. *8 In Matter of Burden, 5 A.D.3d 1, 772 N.Y.S.2d 26 (1st Dept 2004), we imposed a three-month suspension on an attorney who issued improper trial subpoenas to third parties seeking financial and medical records of a tenant, without complying with CPLR 408, although we acknowledge that, unlike here, the respondent in that matter made false statements to the Housing Court and to the Committee about the documents. Nevertheless, in sustaining the charges of misconduct in Matter of Burden, this Court found that the attorney’s “misconduct was a deliberate circumvention of the housing court’s rules and procedures by soliciting and obtaining documents by the abuse of judicial subpoenas” (5 A.D.3d at 3, 772 N.Y.S.2d 26).

​

Accordingly, the Committee’s motion should be granted in its entirety, the Hearing Panel’s determination reversing the Referee’s liability findings as to Charges 1, 2, 3, and 6 is disaffirmed, Charges 1, 2, 3, 6 and 7 are sustained, and respondent is publicly censured. Respondent’s cross motion is granted solely to the extent of confirming the Hearing Panel’s recommended sanction of public censure.

​

Order filed.

​

PER CURIAM.

​

All concur.

​

​

It takes a lot for a lawyer to get his law firm thrown off a case by a judge, but Mr. Winiarsky managed to pull off that feat quite nicely.

​

24 Misc.3d 476
Civil Court, City of New York,
New York County.
Alan NAGEL, Steven Nagel, Evelyn Nagel, and the Lisa W. Nagel Irrevocable Trust, Petitioner,
v.
Kenneth GRAYSON, Respondent,
Carlton Black Colquitt, “John and Jane Doe,” Respondent—Undertenants.
March 27, 2009.

Nativ Winiarsky, Esq., Kucker & Bruh, LLP, New York, for Petitioners.
Steven Sperber, Esq., Sperber, Denenberg & Kahan, P.C., New York, for Respondents.

Opinion

JOSEPH E. CAPELLA, J.

*476 By notice of cross-motion dated January 15, 2009, the respondent seeks dismissal of the instant summary holdover proceeding, suppression/preclusion of certain examination before trial *477 (“EBT”) transcripts, (CPLR § 3103(c)), and sanctions, (22 NYCRR § 130–1.1), due to the petitioner’s counsel engaging in allegedly improper discovery. This summary proceeding is based upon the petitioner’s allegation that the respondent-tenant, Kenneth Grayson (“Kenneth”), does not primarily reside in the subject rent controlled apartment. On April 11, 2007, the parties settled the petitioner’s initial motion for discovery. It was agreed that Kenneth and the respondent-undertenant, Carlton Colquitt (“Carlton”), who is seeking succession based upon nontraditional remaining family member status, would produce documents and appear for EBTs. During the course of the proceeding Kenneth died; however, there still remained to be resolved, Carlton’s succession claim. During his EBT, Carlton testified that Kenneth’s son, Jay, and daughter, Cecelia, possess information relevant to his succession claim. Based on this, the petitioner, by notice of motion dated December 9, 2008 (“discovery motion”), sought leave of court to engage in discovery of these two individuals in the form of EBTs and document production. The motion was served upon said individuals, and attached as exhibits were the proposed subpoena duces tecum and testificandum. As with all such subpoenas, they included language warning the recipients that “failure to comply with this subpoena is punishable as a contempt of Court and shall make you liable to the person on whose benefit this subpoena was issued for a penalty and all damages sustained by reason of your failure to comply.”

In the petitioner’s own memo-of-law in support of its discovery motion, it acknowledged that “discovery is generally thought of an (sic) antithetical to the purposes of a summary proceeding.” The petitioner’s counsel is correct and it is well established that EBTs, interrogatories, and most other discovery devices are not available as of right in summary holdover proceedings. (Clark v. Kellog, N.Y.L.J., July 28, 1982, at 6, col. 1 [App. Term, 1st Dept.]; Joseph v. Stone, N.Y.L.J., June 19, 1985, at 6, col. 1 [App. Term, 1st Dept.]; NYU v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808 [Civ. Ct., N.Y. Cty. 1983]; Residential Landlord–Tenant Law In New York, Scherer, § 13:46, at 819 [2008–2009 Edition].) Although disclosure is more freely granted in holdover proceedings, including disclosure as against non-parties, leave of court must first be obtained. (CPLR 408; Houston v. Zitin, 2001 N.Y. Slip Op. 40237(U), 2001 WL 1470310 [App. Term, 1st Dept. 2001]; Steele v. Acevedo, N.Y.L.J., March 28, 2002, at 21, col. 2 [App. Term, 1st Dept.]; Matter of Shore, 109 A.D.2d 842, 486 N.Y.S.2d 368 [2nd Dept. 1985].) Of course, there is nothing precluding the petitioner’s counsel from initially attempting to contact *478 non-parties to determine whether it is even worthwhile to seek an EBT and/or document production of said individuals. But it is paramount that once the decision is made to engage in discovery, leave of court must first be obtained. Requiring an order for disclosure preserves the summary nature of these proceedings, (NYU v. Farkas, 121 Misc.2d 643, 468 N.Y.S.2d 808, supra ), and permits the court to structure discovery orders in such a way that the interests of all parties are safeguarded.

The petitioner’s discovery motion was returnable December 18, 2009, and according to the petitioner’s counsel:

within a few days of service of the motion, Mrs. Grayson (wife of Mr. Jay Grayson) initiated contact with your affirmant and called asking for further information regarding the motion ... Mrs. Grayson informed your affirmant that her husband would have no objection to voluntary (sic) appear at the office of your affirmant and provide information as to the relationship between [Kenneth] and [Carlton] ... [at Mrs. Grayson’s suggestion] your affirmant contacted [Cecelia who] informed your affirmant that she would have no objection to [likewise] voluntary (sic) appear.1

 

1 During oral argument, the court asked the petitioner’s counsel whether it would have been more prudent for counsel to suggest to these nonparty witnesses that they appear in court on the discovery motion return date and advise the court that they would consent to discovery. Counsel was adamant that once the nonparty witnesses agreed to the EBT, leave of court was no longer necessary.

According to Cecelia’s affidavit dated January 9, 2009:

before the motion was heard I received a phone call from the Petitioner’s law firm ... wherein I was ... to appear for a deposition at their firm and that I can forgo court attendance if I would appear at their office for the recorded examination. I am not really familiar with court procedure and, as such, in order to save time, avoid penalty or problems with the law I went to the attorney’s office as I was told to do and answered an in-depth set of questions asked by [petitioner’s counsel] with a stenographer present.

On December 15, 2008, the petitioner’s counsel contacted the respondent’s counsel via e-mail seeking to adjourn the discovery motion, and both agreed to an adjournment date of January 27, 2009. There was no discussion regarding the recent communication *479 between the petitioner’s counsel, Mrs. Grayson and Cecelia. On December 19, 2008, Cecelia “appear[ed] in the office of Petitioner’s (sic) counsel and answer[ed] a number of questions concerning the relationship of [Kenneth] and [Carlton] before a stenographer.” Although it is obvious from the papers that an EBT of Jay was also undertaken, information regarding same, including the date, was not disclosed by the petitioner’s counsel. The respondent’s counsel never received notice of the EBTs, and to date, the transcripts have not been produced. On December 30, 2008, the petitioner’s counsel notified the respondent’s counsel that they will be withdrawing their discovery motion. Ultimately, the respondent’s counsel learned of the EBTs from his client, and on January 5, 2009, notified the petitioner’s counsel via e-mail that this conduct was sanctionable. That same day, the petitioner’s counsel replied that his “actions (while admittedly clever and shrewd) were wholly legal and in accord with proper practice.”

In support of his cross-motion, the respondent cites the Appellate Term, First Department case of Henriques v. Boitano, 6 Misc.3d 129(A), 2000 WL 34492223, which also involved the petitioner’s law firm. There the Appellate Term found that the nonparty subpoenas issued by petitioner’s counsel violated familiar and fundamental procedural rules since they were served without notice. It held that petitioner’s counsel chose to chart a course which it knew to be at variance with acceptable discovery practice, and suppressed the covertly obtained documents. Moreover, the Appellate Term held that it was not an abuse of discretion for the trial court to “impose sanctions for frivolous conduct ... particularly given the unassailable record showing that counsel had previously engaged in and been admonished for similar discovery abuses.” The respondent’s counsel also cites Brussels v. Henne, 174 Misc.2d 535, 664 N.Y.S.2d 905 [Supreme Court, Queens Cty. 1997], which also involved the petitioner’s law firm. There the Supreme Court held that “counsel’s use of subpoenas was a blatant disregard of the rules. No notice was given to the named parties ... and no application was made pursuant to CPLR 3120(b), as is required.” The court then adjourned the action to afford the parties “a reasonable opportunity to he heard as to the nature, amount and scope of any award of costs or imposition of sanctions.”

The conduct by the petitioner’s counsel was a complete aberration of rudimentary principles of discovery with the context *480 of a summary proceeding. as already noted, and readily admitted by the petitioner’s counsel in his memo-of-law dated December 9, 2008, it is well established and a fundamental principal in summary holdover proceedings that leave of court must first be obtained before engaging in disclosure against parties and non-parties. (CPLR 408; Houston v. Zitin, 2001 N.Y. Slip Op. 40237(U), supra; Steele v. Acevedo, N.Y.L.J., March 28, 2002, at 21, col. 2, supra; Matter of Shore, 109 A.D.2d 842, 486 N.Y.S.2d 368, supra.) The petitioner’s counsel clandestinely deposed two non-party witness to this summary holder proceeding, and is now in possession of improperly obtained evidence. Mere suppression, (CPLR § 3103(c)), in no way assures that the tainted information obtained by design will not be used by the petitioner’s counsel to derive any further benefit. While the information obtained may be relevant, and the court may have granted discovery of these non-party witnesses, the respondent’s counsel opportunity to object (and potentially appeal any negative decision) and the court’s primary role of ruling on these issues were usurped by the petitioner’s counsel. The conduct engaged in by the petitioner’s counsel exhibited a complete and deliberate disregard for the process by which discovery in a summary holdover proceeding is to be conducted, and this type of abuse cannot be countenanced. Ultimately, this court must preserve the integrity of obtaining disclosure in summary proceedings, and any sanction short of disqualification would treat the conduct at hand with a degree of lenity practically inviting it recurrence.

Therefore, based on the aforementioned, the respondent’s cross-motion is granted to the extent of suppressing the EBT transcripts of Cecelia and Jay, awarding the respondent reasonable attorney fees for the instant cross-motion,2 and disqualifying the petitioner’s firm, Kucker & Bruh, LLP. The proceeding will remain off calendar for at least 45 days so as to allow the petitioner an opportunity to obtain new counsel. This decision is without prejudice to the petitioner’s new counsel properly seeking discovery as against these non-party witnesses.

 

2 The amount of reasonable attorney fees shall be determined at the conclusion of the proceeding.

This constitutes the decision and order of this court, copies of which are being mailed by the court to the parties.

​

​

​Mr. Winiarsky claims, on his law firm’s web site, to have “an established reputation as an extremely competent . . . litigator,” but as you can see below, this insecure fool doesn’t win them all.

​

227 A.D.3d 767
Supreme Court, Appellate Division, Second Department, New York.
Torel BASCOM, etc., respondent,
v.
1875 ATLANTIC AVE DEVELOPMENT, LLC, appellant.
2021-07525
(Index No. 502056/21)
Argued—February 8, 2024
May 8, 2024

Kucker Marino Winiarsky & Bittens, LLP, New York, NY (Nativ Winiarsky of counsel), for appellant.
Newman Ferrara LLP, New York, NY (Lucas A. Ferrara and Roger A. Sachar of counsel), for respondent.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.

DECISION & ORDER

*767 In a putative class action, inter alia, to recover damages for rent overcharges, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated August 31, 2021. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In 2021, the plaintiff, a tenant of a residential apartment building (hereinafter the building) in Brooklyn, commenced this putative class action against the defendant, 1875 Atlantic Ave Development, LLC, the owner of the building, inter alia, to recover damages for rent overcharges and violations of the Rent Stabilization Law, including Rent Stabilization Law (Administrative Code of City of NY) § 26–512, and the Rent Stabilization Code, including Rent Stabilization Code (9 NYCRR) § 2521.1(g), and for calculation of the lawful rent. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In an order dated August 31, 2021, the Supreme Court denied the defendant’s motion. The defendant appeals.

When deciding a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, “the court must ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Rudovic v. Law Off. of Timothy A. Green, 200 A.D.3d 814, 815, 155 N.Y.S.3d 128, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes the plaintiff’s factual allegations” (Bedford–Carp Constr., Inc. v. Brooklyn Union Gas Co., 215 A.D.3d 907, 908, 188 N.Y.S.3d 554 [internal quotation marks omitted]; see Mawere v. Landau, 130 A.D.3d 986, 987, 15 N.Y.S.3d 120).

Rent Stabilization Law § 26–512(a) provides that “[n]o owner of property subject to this law shall charge or collect any rent in excess of the initial legal regulated rent or adjusted initial legal regulated rent until the end of any lease or other rental agreement in effect on the local effective date until such time as a different legal regulated rent shall be authorized pursuant to guidelines adopted by a rent guidelines board.” Under the *768 Rent Stabilization Code, “[t]he initial legal regulated rent for a housing accommodation ... constructed pursuant to [RPTL 421–a] shall be the initial adjusted monthly rent charged and paid but not higher than the rent approved by [the Department of Housing Preservation and Development]” (9 NYCRR 2521.1[g]). The Rent Stabilization Code further defines a “preferential rent” as rent charged to and paid by a tenant that is less than the legal regulated rent for the housing accommodation (id. § 2521.2[a]). Here, the complaint alleged, inter alia, that the defendant did not register the monthly rents that were actually charged and paid but, instead, improperly inflated the registered initial rents by offering prorated discounts disguised as one-time monthly concessions, resulting in rent overcharges.

Contrary to the defendant’s contentions, these allegations are sufficient to state a cause of action (see Wise v. 1614 Madison Partners, LLC, 214 A.D.3d 550, 186 N.Y.S.3d 613; Chernett v. Spruce 1209, LLC, 200 A.D.3d 596, 161 N.Y.S.3d 48). The defendant’s reliance on Burrows v. 75–25 153rd Street LLC, 215 A.D.3d 105, 189 N.Y.S.3d 1 to suggest otherwise is misplaced. In Burrows, the terms of the plaintiff’s lease specifically included a concession of two free months, which the Appellate Division, First Department determined did not affect the legal regulated rent pursuant to the New York State Division of Housing and Community Renewal (DHCR) Fact Sheet # 40 (see id. at 115–116, 189 N.Y.S.3d 1). However, Burrows further noted, also pursuant to DHCR Fact Sheet # 40, that prorated discounts are actually preferential rents, which must be the rent registered under RSC § 2521.1(g) for buildings under the 421–a program (Burrows v. 75–25 153rd Street LLC, 215 A.D.3d at 115, 189 N.Y.S.3d 1). Here, it is undisputed that the plaintiff received one free month of rent and that a rider to his lease indicated that his monthly rent was $2,105. However, there is also evidence in the record that the apartments in the building were being advertised at prorated, “net effective” rates that took the one-month concession into consideration. As the lease rider “must be read ‘in light of the circumstances existing at its making’ ” (Flynn v. Red Apple 670 Pac. St., LLC, 200 A.D.3d 607, 609, 161 N.Y.S.3d 35, quoting Matter of Century Operating Corp. v. Popolizio, 60 N.Y.2d 483, 488, 470 N.Y.S.2d 346, 458 N.E.2d 805), the allegation in the complaint that the defendant improperly manipulated the initial legal regulated rent is sufficient to survive the defendant’s motion to dismiss. Accordingly, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(7).
 

Likewise, since the documentary evidence submitted did not *769 otherwise utterly refute the allegations of the complaint, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(1) (see Wise v. 1614 Madison Partners, LLC, 214 A.D.3d at 550, 186 N.Y.S.3d 613).
 

DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.
 

​​​​

Here is another defeat for this “extremely competent . . . litigator.”

 

​​​218 A.D.3d 731
Simone Collins et al., Appellants,
v
527 Lincoln Place, LLC, Respondent.
Supreme Court, Appellate Division, Second Department, New York
2020-05786, 508400/19
July 26, 2023
 

Grimble & Loguidice, LLP, New York, NY (Robert Grimble of counsel), for appellants.
Kucker Marino Winiarsky & Bittens, LLP, New York NY (Nativ Winiarsky of counsel), for respondent.
​

DECISION & ORDER​

 

In a putative class action, inter alia, to recover damages for rent overcharges, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated July 20, 2020. The order granted those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action, to refer the matter to the New York State Division of Housing and Community Renewal to determine the legal regulated rent for all units of the residential premises at issue, and pursuant to CPLR 2201 to stay all proceedings in the action.

​Ordered that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting those branches of the defendant’s motion which were to refer the matter to the New York State Division of Housing and Community Renewal to determine the legal regulated rent for all units in the residential premises at issue and to stay all proceedings in the action, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiffs.

In 2019, the plaintiffs, seven current and former tenants of a 24-unit residential building in Brooklyn (hereinafter the premises), commenced this putative class action against the defendant 527 Lincoln Place, LLC, the owner of the premises, inter alia, for a judgment declaring that the plaintiffs’ units in the premises are subject to the rent stabilization laws and the amount of legal regulated rent the defendant may charge for each unit in the premises, to recover damages for rent overcharges, and to recover damages for violations of General Business Law § 349 and Administrative Code of the City of New York (hereinafter Administrative Code) § 20-700. The defendant moved, among other things, pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action, alleging violations of General Business Law § 349 and Administrative Code § 20-700, for failure to state a cause of action, to refer the matter to the New York State Division of Housing and Community Renewal (hereinafter DHCR) to determine the legal regulated rent for all units in the premises, and pursuant to CPLR 2201 to stay all proceedings in the action. In an order dated July 20, 2020, the Supreme Court granted those branches of the defendant's motion. The plaintiffs appeal.

The Supreme Court should have denied those branches of the defendant’s motion which were to refer the action to the *733 DHCR and to stay all proceedings. The Housing Stability and Tenant Protection Act of 2019 provides that “[t]he courts and the [DHCR] have concurrent jurisdiction, subject to the tenant’s choice of forum” (L 2019, ch 36, § 1, part F, §§ 1, 3). In rent overcharge cases, the “plaintiffs’ choice of forum controls” (Collazo v Netherland Prop. Assets LLC, 35 NY3d 987, 990 [2020]; see Chernett v Spruce 1209, LLC, 200 AD3d 596, 598 [2021]). Here, the plaintiffs selected the court as the forum of their choice. Thus, the court improperly granted that branch of the defendant’s motion which was to refer the matter to the DHCR (see Collazo v Netherland Prop. Assets LLC, 35 NY3d at 990; Chernett v Spruce 1209, LLC, 200 AD3d at 598), and improvidently exercised its discretion in granting that branch of the defendant’s motion which was to stay all proceedings in the action (see Fleet Natl. Bank v Marrazzo, 23 AD3d 337, 338 [2005]).

However, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action, alleging violations of General Business Law § 349 and Administrative Code § 20-700, for failure to state a cause of action (see Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 177 [2021]; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]). A cause of action under General Business Law § 349 “must allege that: (1) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an injury as a result of the deception” (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d at 176). Likewise, a cause of action under Administrative Code § 20-700 must allege that a defendant engaged in deceptive or unconscionable trade practice in, inter alia, the sale of any consumer goods or services (Administrative Code § 20-700; see Polonetsky v Better Homes Depot, 97 NY2d 46, 52 [2001]). Here, the allegations were bare and conclusory and thus failed to state a cause of action under either General Business Law § 349 or Administrative Code § 20-700 (see Collazo v Netherland Prop. Assets LLC, 35 NY3d at 991).

In light of our determination, we need not reach the parties’ remaining contentions. Duffy, J.P., Maltese, Christopher and Genovesi, JJ., concur.

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Not only did the idiot Winiarsky lose in the Second Department, he lost in the First Department, too.

​211 A.D.3d 639
Joseph Lombardo, Respondent,
v
333 East 49th Partnership, LP, et al., Appellants, et al., Defendants.
Supreme Court, Appellate Division, First Department, New York
160424/20, 16999, 17000, 2022-01414, 2022-01421
December 29, 2022

Kucker Marino Winiarsky & Bittens, LLP, New York (Nativ Winiarsky of counsel), for appellants.
Goldberg & Lindenberg, P.C., New York (Jessica R. Goldberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered March 17, 2022, in favor of plaintiff and against defendants 333 East 49th Partnership, LP, 333 EA 4th Partnership, LP, and 330 East 50th Partners, LP, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 3, 2022, which granted plaintiff’s motion for summary judgment and denied defendants' motion for summary judgment or to amend, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court correctly granted plaintiff’s CPLR 3212 motion for summary judgment. In the June 2021 order that denied plaintiff’s CPLR 3213 motion, the court determined that the Petition for Administrative Review (PAR) order did not qualify as an “instrument for the payment of money only” because it was missing the required Division of Housing and Community Renewal (DHCR) certification form to make it such an instrument, and thus it did not constitute a proper basis for seeking summary judgment in lieu of a complaint.

Contrary to defendants’ argument, the court's June 2021 order did not preclude summary judgment under CPLR 3212 in plaintiff's favor. Because the court found that the issues had been “extensively litigated, that defendants have had numerous opportunities to defend themselves against plaintiff’s claims and have done so, and that this action seeks to enforce DHCR’s findings against defendants,” plaintiff had met his prima facie burden for summary judgment. The court correctly determined that defendants were bound by the factual findings of the PAR decision and thus were unable to raise triable issues of fact or assert new defenses to the already litigated claims (see Gersten v 56 7th Ave. LLC, 88 AD3d 189 [1st Dept 2011] [holding that a party was precluded from relitigating the rent-stabilized status of an apartment that had already been determined in the DHCR proceeding]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Manzanet-Daniels, J.P., Oing, Singh, Moulton, Mendez, JJ.

​
Same Department, same result.
 

200 A.D.3d 491
Michele E. Hess et al., Respondents,
v
EDR Assets LLC et al., Appellants. (And Another Action.)
Supreme Court, Appellate Division, First Department, New York
14817, 160494/17, 2021-01276
December 9, 2021

Kucker Marino Winiarsky & Bittens, LLP, New York (Nativ Winiarsky of counsel), for appellants.
Newman Ferrara LLP, New York (Roger A. Sachar of counsel), for respondents.
 

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered March 10, 2021, which granted plaintiffs’ motion to certify this matter as a class action, unanimously affirmed, with costs.

​Opinion​

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered March 10, 2021, which granted plaintiffs’ motion to certify this matter as a class action, unanimously affirmed, with costs.

​We decline to consider defendants’ argument that, as a matter of law, they did not engage in a fraudulent scheme to deregulate units because they merely delayed in re-registering *492 the units after the Court of Appeals decided Roberts v Tishman Speyer Props., L.P. (13 NY3d 270 [2009]), as this argument presents factual issues that were not submitted to the motion court (see Mable v 384 E. Assoc., LLC, 175 AD3d 1127, 1129 [1st Dept 2019]).

​To the extent that the record permits review, we reject defendants’ argument on the merits. Plaintiffs assert that defendants, while enjoying J-51 tax benefits, failed to re-register the units until years after Roberts was decided and applied retroactively, waited over a year to re-register units after being notified by DHCR that they had to do so, took steps to comply only after their scheme was uncovered, and continued to inform tenants that the units were not subject to regulation even after DHCR notified them otherwise. Contrary to defendants’ contention, plaintiffs have alleged more than a mere delay in re-registering units, and their allegations, if proven, may support application of the default formula (see Montera v KMR Amsterdam LLC, 193 AD3d 102, 105-109 [1st Dept 2021]; Nolte v Bridgestone Assoc. LLC, 167 AD3d 498, 498-499 [1st Dept 2018]). The case of Gridley v Turnbury Vil., LLC (196 AD3d 95 [2d Dept 2021]) is inapposite.

​We have considered defendants’ remaining arguments and find them unavailing. Concur—Kapnick, J.P., Moulton, González, Rodriguez, Pitt, JJ.

​

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